State v. ConwayState v. Conway
After his original hard labor sentences totaling 28 years were found constitutionally excessive, Conway now appeals, as excessive, his sentences, after remand, that total 20 years at hard labor, which this court said was the maximum range of the trial court‘s sentencing discretion. State v. Conway, 588 So.2d 1369 (La.App. 2d Cir. 1991), J. Brown dissenting.
Conway‘s original hard labor sentences, ordered to run consecutively, were seven years on four counts, two for distribution of marijuana and two for distribution of cocaine.
After these sentences were set aside and resentencing was directed, the trial court again sentenced Conway to seven years on each count, but effectively ordered that three years on the first count of marijuana distribution run consecutive with the seven-ear sentence on the first count of cocaine distribution, that the seven-year sentence for the second count of cocaine distribution run consecutive to any other sentence, and that three years on the second count of marijuana distribution run consecutive to any other sentence. Consecutively, the sentences total 20 years.
In the original appeal, this court did not address Conway‘s apparent indigency and the fact that he was also sentenced either to pay a $5,000 fine or serve one-ear default time on each of the marijuana counts. Notwithstanding the statutory authorization for either a fine or default time in addition to a hard labor sentence, it is constitutionally impermissible to subject an indigent to further incarceration because of his inability to pay a fine. An appellant‘s claim to indigency in such a situation may be discerned from the appellate record. See State v. Williams, 484 So.2d 662 (La. 1986).
This record shows that Conway was represented by appointed counsel at his trial and on his appeal. A 1991 affidavit in the record shows that Conway‘s assets total about $50. In this light, we vacate the imposition of default time. See State v. Monson, 576 So.2d 517 (La.1991).
Conway agrees that the trial court complied with
DECREE
For reasons assigned in his original appeal, we affirm the hard labor sentences imposed for each of the four counts after remand. These sentences total 20 years at hard labor. For reasons assigned here, we amend to vacate the additional imposition of default time for the distribution of marijuana. We also direct the district court to comply with
As amended, AFFIRMED;
APPLICATION FOR REHEARING
Before MARVIN, SEXTON, VICTORY, BROWN and STEWART, JJ.
Rehearing denied.